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Examining Sexual Violence in the Military Within the Context of Eritrean Asylum Claims Presented in Norway
CECILIA M. BAILLIET *
Abstract
Discussion of rape by soldiers as a form of persecution has largely been directed towards the context of war or actual confl ict. Nevertheless, there is a need for attention to be directed towards the phenomenon of rape within the military in the post-confl ict period. This article discusses asylum claims presented in Norway by Eritrean female soldiers claiming risk of persecution in the form of sexual violence, rape, or torture within the military. First, presen- tation is made of the history of Eritrean women’s participation in the war of independence and the ensuing political and legislative gains won at the end of the war against Ethiopia.
Review of Eritrea’s report and responses to the Committee on the Elimination of Discrimi- nation Against Women (CEDAW) reveal a state of backlash against women in the post-con- fl ict period. Second, examination of how rape within the military and desertion may fall under the criteria of the defi nition of a refugee according the 1951 Convention on the Sta- tus of Refugees is pursued. Comparison is drawn to instances of rape of women soldiers in the US and Israel, as well as sexual violence by United Nations Mission in Ethiopia and Eritrea (UNMEE) peacekeepers, revealing common challenges affecting prevention and protection strategies. Third, a comparative review is conducted of evidentiary standards in order to highlight the importance of maintaining a fl exible approach responsive to the spe- cial circumstances of sexual violence. The Norwegian practice indicated a tendency to pro- vide protection for compassionate grounds or humanitarian protection, rather than asylum.
This resulted in non-recognition of the legitimacy of claims based on gender related perse- cution as requiring legal protection under the 1951 Convention on the Status of Refugees.
1. Introduction
David Mitchell states:
Rape is prohibited in every major domestic legal system, is universally included as a component of every other jus cogens norm, and has long been a violation of cus- tomary international law. And yet, while rape is often treated as jus cogens , its pro- hibition is rarely enforced and the proliferation of violence against women continues to thrive with remarkable impunity. 1
* Associate Professor, Department of Public & International Law, University of Oslo, Norway. The author would like to express her appreciation to the Norwegian Directorate of Immigration and the Immigration Board of Appeals for their generous provision of cases, as well as to the Librarians of the University of Leiden Law Library for their effective assistance. I am also indebted to the Editor of this journal and to the anonymous Reader for their comments.
1 David S. Mitchell, ‘ The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens : Clarifying the Doctrine ’ 15 Duke J. Comp. & Int’l L . 219 (Spring-Summer 2005).
Rape is a form of sexual violence; it is characterized by the means of attack or ground for targeting of which the consequence is violation of the human dignity of the victim. 2
The focus on the use of mass rape within situations of ethnic cleansing, ethnic confl ict, inter- and intra-state war has sought to expose systematic and strategic characteristics of targeted violence against women. Exam- ples include cases from Bosnia, Rwanda, the former Yugoslavia, Congo, Sudan, Sierra Leone and the use of comfort women by the Japanese mili- tary and child ‘ wives ’ of LRA commanders in Uganda. 3 These cases have
2 The ICC Statute and Elements of Crimes are the fi rst international instruments to codify the elements of rape and sexual violence. The Rome Statute of the International Criminal Court, 2187 UNTS 90, opened for signature 17 July 1998 (entered into force 1 July 2002) (hereinafter Rome Stat- ute). The ICC Elements of Crimes, Report of the Preparatory Commission for the International Criminal Court, Finalized Draft Text of the Elements of Crimes, Preparatory Comm’n for the Inter- national Criminal Court, addendum part II, UN Doc. PCNICC/2000/1/Add.2 (2000) (hereinafter ICC Elements of Crimes) Article 7 (1)(g)-1 Rape as a crime against humanity, 7 (1)(g)-6 Sexual Vio- lence as a Crime against Humanity, Article 8 (2)(b)(xxii)-1 Rape as a war crime, and Article 8 (2)(b)(xxii)- 6 Sexual Violence as a War Crime. The core common elements of rape are:
1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ of or the anal or genital opening of the victim with any object or any other part of the body.
2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.
The core common element of sexual violence is:
1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such persons or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity of giving genuine consent.
The Rome Statute and Elements of Crimes also include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence within the categories of genocide, crimes against humanity and war crimes.
3 See, The Shame of War: Sexual Violence against Women and Girls in Confl ict (UN OCHA/IRIN 2007). On Japanese comfort women, see, Sue R. Lee, Comment: ‘ Comforting the Comfort Women: Who Can Make Japan Pay? ’ U. Penn. J. Int’l. Econ. L . 509 (Summer, 2003); Anne Barker ‘ Justice Delayed ’ 8 MSU-DCL J. Int’l.
L . 453 (Summer 1999); Brooke Say, Comment ‘ Ripe for Justice: A New UN Tool to Strengthen the Position of the “ Comfort Women ” and to Corner Japan into its Reparation Responsibility ’ 23 Penn St. Int’l L. Rev . 931 (Spring 2005). On Congo, see, Naomi Cahn, ‘ Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence ’ , 1 Stan. J. Civ. Rts. & Civ. Liberties 217 (Apr. 2005). On Bosnia and Sudan, see, Stephanie N. Sackellares, ‘ From Bosnia to Sudan: Sexual Violence in Modern Armed Confl ict ’ Wis. Women’s L. J . 137 (Spring 2005). On Sierra Leone, see, Shana Eaton, ‘ Sierra Leone: The Proving Ground for Pros- ecuting Rape as a War Crime ’ Geo. J. Int’l. L . 873 (Summer 2004). On Uganda, see, Abigail Leibig, Note and Comment: ‘ Girl Child Soldiers in Northern Uganda: Do Current Legal Frameworks offer Suffi cient Protec- tion? ’ 3 NW. U. J. Int’l Hum. Rts. 6 (Spring, 2005). See, generally, Kelly Askin, ‘ A Decade of the Development of Gender Crimes in International Courts and Tribunals: 1993 TO 2003 ’ 11 Hum. Rts. Brief 16 (Spring 2004). See also, Valerie Oosterveld, ‘ Sexual Slavery and the International Criminal Court: Advancing Inter- national Law ’ 25 Mich. J. Int’l. L . 605 (Spring 2004). See also, Kelly Askin, ‘ Prosecuting Wartime Rape and other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles ’
resulted in the recognition of rape and sexual violence as constituting part of enslavement, inhumane acts, torture, war crimes, crimes against human- ity, and genocide by international and national tribunals. 4 One essential element in these attacks is the targeting of the women as the ‘ other ’ , often symbolizing the rival ethnic group and/or religious community, in con- junction with gender, to be oppressed via rape. Rape and sexual violence have been recognized as a form of persecution by the International Crim- inal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v. Kvocka , as well as within the Rome Statute Establishing the International Criminal Court. 5 The ICC Elements of Crimes includes gender based persecution within the defi nition of genocide, crimes against humanity, and war crimes. 6 Further, given that rape is a violation of customary international
21 Berkeley J. Int’l L . 288 (2003). See also, A. Yasmine Rassam, ‘ International Law and Contemporary Forms of Slavery: An Economic and Social Rights-Based Approach ’ 23 Penn St. Int’l L. Rev . 809 (Spring 2005).
4 See, Prosecutor v. Musema , ICTR, Case No. 96-13-A, Judgment 221,226 (27 Jan. 2000). See also, Prosecutor v. Furundzija , ICTY, IT-95-17/ 1-T, Judgment 185 (10 Dec. 1998) holding rape as torture according to Article 3 of the ICTY Statute. See also, Prosecutor v. Akayesu , ICTR, 96-4-T, Judgment, 706- 07, 731-34 (2 Sept. 1998) holding that sexual violence is linked to torture and genocide. Rape is a viola- tion of dignity and can be a form of torture when used to intimidate, degrade, humiliate, discriminate, punish, control or destroy the victim. See, Kelly Askin, ‘ Gender Crimes Jurisprudence in the ICTR - Positive Developments ’ , 3 J. Int’l. Crim. Just . 1007, 1009-12 (2005). See also, Prosecutor v. Delalic (et al) Celebici (1998), ICTY, Judgment, IT-96-21-T (16 Nov. 1998) holding rape to constitute torture according to Arts. 2 and 3 of the ICTY statute. See also, Prosecutor v. Kunarac , ICTY, Judgment, IT-96-23-T &
IT-96-23/I-T (22 Feb. 2001 and 12 June 2002) holding rape as a violation of Article 3, outrage upon personal dignity, and customary international law. These cases have held that when a person is raped with the intent to infl ict severe pain or suffering on the victim for a prohibited purpose - such as for punishment, intimidation, coercion, discrimination, humiliation or to secure information - it may con- stitute torture. See also, Mejia v. Peru , Case 10.970, Report No. 5/96, Inter American Commission on Human Rights (1 Mar. 1996), holding rape to constitute torture and a violation of privacy according to the American Convention on Human Rights, Arts. 5.2 and 11. See also, X & Y v. the Netherlands , European Court of Human Rights, Judgment (26 Mar. 1985), Series A, no. 91, holding that rape abridges the right to privacy and holding the State responsible for failing to provide a remedy to the victim. See also, Aydin v. Turkey , European Court of Human Rights (25 Sept. 1997), Reports of Judg- ments and Decisions 1997, VI. See also, Kelly Askin, ‘ The Jurisprudence of International War Crimes Tribunals: Securing Gender Justice for Some Survivors ’ in Helen Durham & Tracey Gurd (eds.), Listen- ing to the Silences: Women and War , 125-153 (Martinus Nijhoff 2005). Both the ICTR and ICTY Statutes state that rape can be a crime against humanity or a form of torture. Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955 UNSCOR 49 th Sess. 3453 rd mtg., 3, UN Doc.
S/RES/955 (1994) 3 g, and Statute of the International Criminal Tribunal for Yugoslavia, S.C. Res.
827, UN SCOR, 48 th Sess., Annex, 3217 th mtg., 6, UN Doc. S/RES/827 (1993), 32 ILM 1192.
5 See, Prosecutor v. Kvocka , ICTY, Judgment, IT-98-30-T (2 Nov. 2001), establishing that rape can be a form of persecution. See, Valerie Oosterveld, ‘ Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime Against Humanity of Gender-Based Persecution ’ 17 Duke J. Comp. & Int’l . 49 (Fall 2006), noting the recognition of persecution in the form of sexual violence as a foreseeable consequence due to the link between gender and political, racial/ethnic, or religious identity by the ICTR Trial Chamber in the Nahimana case, Case No. ICTR-99-52-T (3 Dec.
2003) and the ICTY in the Krstic judgment , Prosecutor v. Krstic , ICTY, Judgment, IT-98-33-T, Trial Chamber I (2 Aug. 2001).
6 ICC Elements of Crimes Art. 7 (1)(h). The Rome Statute defi nes persecution as the intentional and severe deprivation of fundamental rights contrary to international law. The persecutor targets the person on account of group or collective identity related to political, racial, national, ethnic, cultural, religious, gender or other ground impermissible under international law.
law, recognition of victims is not limited to civilians, but can include mili- tary personnel. 7
The failure by the state of origin to adequately prevent or punish those who commit rape of women within the military can result in resignation, desertion, and even migration of victims abroad. 8 Catherine Mackinnon described rape as ‘ an instrument of forced exile, rape to make you leave your home and never want to go back ’ . 9 As of 2005, the Norwegian Directorate of Immigration ( Utlendingsdirektoratet, hereinafter UDI or Immigration Directorate) and the Norwegian Board of Immigration Appeals ( Utlendingsnemnda, hereinafter UNE or Immigration Appeals Board) had determined a series of cases involving asylum claims from the Eritrean military citing fear of rape, and/or other forms of inhuman treatment or torture, as grounds for desertion or draft eva- sion. 10 Although the Eritrean government presents its inclusion of women in the military as demonstrating egalitarian principles, the asylum cases paint a different picture. This is one in which the social constructs of the role of women remain traditional and permit sexual violence. This case study addresses the assessment of protection drawing from the fi elds of refugee law, human rights law and international criminal law which are concurrently appli- cable. It advocates a harmonized approach to fulfi l the humanitarian purpose of the 1951 Convention on the Status of Refugees in keeping with the aspira- tion to ensure implementation of a gendered protection perspective.
2. Country background context
Eritrea pursued a thirty year war of independence against Ethiopia which ended in 1991. A referendum was held and independence was approved in 1993. Nevertheless, a border war erupted between the two countries which lasted from 1998 to 2000. The UN established a peacekeeping operation, which remains in place, in order to monitor the Temporary Security Zone at the border. The government is described as ‘ transitional ’ , composed of
7 Prosecutor v. Kupreskic et al , ICTY Case No. IT-95-16, Trial Chamber II Judgment (14 Jan. 2000) 568, noting that military personnel can be victims of violations of international customary law.
8 The problem of access to justice is not only national, but it affects supranational litigation as well.
For example, when the Judges of the Special Court for Sierra Leone refused to allow the prosecution of Civil Defence Forces for sexual violence committed against their own ethnic group, criticisms were raised that the rejection of the case was based on a view that women were ‘ rendering support ’ to the combatants and that linkage to a war crime would be diffi cult given that they were on the same side.
9 Cited by Lori A. Nessel ‘ “ Willful Blindness ” to Gender-Based Violence Abroad: United States ’ Imple- mentation of Article Three of the United Nations Convention against Torture ’ 89 Minn. L. Rev. 71(2004).
She notes the failure of UN demobilization program in Liberia to address women because it is believed that they have nothing to demobilize, citing Caroline Preston, ‘ Rehabilitation Programs Reportedly Failing War Affected Females ’ UN Wire, 5 Apr. 2004 available at: < http://www.unwire.org/UNWire/20040405> . In addition, she cites Aberico Gentili, De Jure Belli Libri Tres 258-59 (John C. Rolfe Trans 1995) (1612) stat- ing that it was unlawful to rape a woman in wartime even if was she is a combatant.
10 Norwegian asylum cases at the administrative levels are unpublished. Twelve cases involving Eri- trean women asylum seekers were selected (six from UDI and six from UNE) and twelve cases involving Eritrean men were selected (seven from UDI and fi ve from UNE) as representative of the case load.
a National Assembly, including the sole legal party, the People’s Front for Democracy and Justice (PFDJ), as the legislature. This body elected Issayas Afewerki as president and there have not been any presidential or parlia- mentary elections thus far. A Constitutional Commission drafted a Consti- tution which was ratifi ed by the national referendum, but the president has not implemented it. Human Rights Watch characterizes the state as ‘ highly repressive ’ , in which freedom of opinion is restricted and journalists and editors are arrested and detained without due process. 11 All non-govern- mental publications have been shut down and foreign correspondents ex- pelled, resulting in limited information as to country conditions.
2.1 Eritrean women’s participation in the war of independence
The development of policies regarding the emancipation of women in Eritrea is described as rooted in the nation’s liberation movement. Women constituted 30 per cent of the national liberation army during the libera- tion movement in the Eritrean Peoples Liberation Front. A mythic image of the woman as a soldier emerged. One account from 1988 provides the following description:
There is almost a neuter quality to female Eritrean guerrillas. After years of living in the fi eld exactly like men, they have come to resemble them physically. Their hair is short, their hands and feet callused, their legs sinewy. Though men and women sleep side by side in the cramped front-line quarters, sex is said to be rare and pregnancies unusual. 12
This imagery was utilized to seek transformation of the participation of women from the battlefi eld to the political, social and economic realms upon independence. The Eritrean Constitution (23 May 1997) contains egalitarian language which promotes recognition of the contribution of women to the emergence of the nation as an independent entity and envisions equal participation. 13 The Preamble sets forth:
Noting the fact that the Eritrean women’s heroic participation in the struggle for independence, human rights and solidarity, based on equality and mutual respect,
11 Africa Advocacy Director for Human Rights Watch, ‘ Testimony to U.S. House of Representa- tives 5 May 2005: Ethiopia and Eritrea: Promoting Stability, Democracy and Human Rights ’ ( Human Rights Watch 2005).
12 Cited in Linda Grant De Pauw, Battle Cries and Lullabies: Women in War from Prehistory to the Present (University of Oklahoma 1998), 292.
13 Eritrea’s Combined Initial, Second and Third Periodic Reports to the Committee on the Elimi- nation of Discrimination Against Women, UN doc. CEDAW/C/ERI/1-3, 3 Feb. 2004. The Constitu- tion also contains guarantees on equality and protection from discrimination: Article 7(2) – On Democratic Principles - prohibits any form of discrimination against women and reads: ‘ Any act that violates the human rights of women or limits or otherwise thwarts their role and participation is pro- hibited ’ . Article 14 on Equality under the Law: ‘ All persons are equal under the law. The National Assembly shall enact laws that can assist in eliminating inequalities existing in the Eritrean Society ’ .
generated by such struggle will serve as an unshakable foundation for our commit- ment to create a society in which women and men shall interact on the basis of mutual respect, solidarity and equality.
Eritrea’s report to CEDAW also cites the National Charter, characterized as the ideological guideline and principal document of the People’s Front for Democracy and Justice (PFDJ):
A society that does not respect the rights and equality of women can not be a truly liberated society. During the years of struggle, big changes occurred for Eritrean women. Seen as weak and passive creatures, of less value than man, the Eritrean woman transformed herself into a formidable fi ghter when her erstwhile-suppressed strength was allowed to express itself. Our revolution would not have succeeded without their participation … The role of women in society and in the family should be given greater recogni- tion. Eritrea cannot modernize without the full participation of women … Eritrea must be a country where both genders live in equality, harmony and prosperity.
A news report described an international celebration of the achievements of the Eritrean women:
After independence from Ethiopia in 1993, women were rewarded with legal rights unheard of across most of sub-Saharan Africa, including rights of property ownership, divorce and custody of children. Thirty percent of the seats in parliament were reserved for women. International Women’s Day was made an offi cial holiday. Eritrea became a showcase and women’s studies classes in Europe and the United States added its example to the curriculum. 14
Nevertheless, Eritrea has yet to sign and ratify the Protocol to the African Charter on Human and Peoples ’ Rights on the Rights of Women in Africa. 15 This is of special concern because it contains expansive provisions which address the State’s duties to protect and prevent women from being subjected to private and public sexual
14 Emily Wax, ‘ Eritrea’s Female Veterans Seek Peacetime Role ’ MSNBC, 4 Apr. 2004, available at:
< http://www.msnbc.msn.com> . Indeed, in Feb. 2006 the Committee on the Elimination of Discrim- ination Against Women commended Eritrea for the reservation of 30% of seats in regional assemblies for women, recognition of the right of women to use land without discrimination, and adoption of equal citizenship rights for women. Committee on the Elimination of All Forms of Discrimination against Women, Concluding Comments to Eritrea’s Combined Initial, Second and Third Periodic Reports to the Committee on the Elimination of All Forms of Discrimination Against Women, UN doc. CEDAW/C/ERI/CO/3, 3 Feb. 2006, available at: < http://www.un.org/womenwatch/daw/
cedaw/34sess.htm> .
15 Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6, 13 Sept. 2000; reprinted in 1 Arz. Hum. Rts. L.J . 40, entered into force 25 Nov. 2005, with 15 ratifi ca- tions, 15 deposits, and 38 signatures out of a total of 53 countries.
violence, as well as to punish those who violate their rights. 16 Specifi - cally, it calls for adoption and enforcement of legislative and other measures to prohibit the exploitation or degradation of women, in- cluding sexual violence. The failure to sign this instrument is an indi- cator that the issue of women’s rights remains contentious in the post-confl ict period.
2.2 Post-confl ict backlash and response by CEDAW
The gains won during the war appear to have stagnated or diminished in the post-confl ict period. In part, there are claims of a backlash against women, in which men seek to restore the traditional division of labour and gender roles, and this has been identifi ed as an even harder struggle than the war. 17 This provoked comment from CEDAW Committee mem- ber Ms Tavares Da Silva, who noted that reversion to traditional gender roles was a common phenomenon in the stable periods following revolu- tionary phases. 18 Confl icts often arise concerning access to education, the right to work, child care responsibilities, etc. Yet, perhaps the area of greatest concern pertains to the right of security of the person. Inci- dences of rape in Eritrea have escalated in the recent period, and this suggests that the backlash manifests itself in the form of physical and sexual violence. Upon identifi cation of issues and questions with regard to Eritrea’s report to the CEDAW, the Pre-Session Working Group noted that the report of the Special Rapporteur on Violence against Women, Integration of the Human Rights of Women and the Gender Perspective Violence Against Women indicated that violence against women is ‘ per- vasive ’ in Eritrea, yet Eritrea’s report provided little information on this. 19
16 See, Article 3 (3) States Parties shall adopt and implement appropriate measures to prohibit any exploitation or degredation of women, (4) States Parties shall adopt and implement appropriate meas- ures to ensure the protection of every woman’s right to respect for her dignity and protection of women from all forms of violence, particularly sexual and verbal violence. Article 4 (2)(a) States Parties shall take appropriate and effective measures to enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public (e) punish the perpetrators of violence against women and implement programmes for the rehabilita- tion of women victims. Article 5 (d) States Parties shall take all necessary legislative or other measures to eliminate such practices (which negatively affect the human rights of women and which are contrary to recognised international standards), including protection of women who are at risk of being sub- jected to harmful practices or all other forms of violence, abuse and intolerance.
17 De Pauw, n. 12 above, 293.
18 UN Committee on the Elimination of Discrimination Against Women, ‘ Women’s Anti- Discrimination Committee Takes Up Report of Eritrea: Told Gender Equality Efforts Hindered by Stereotypes, Poverty, War ’ , 24 Jan. 2006, available at < http://www.reliefweb.int/rw/rwb.nsf/db900SID/
KHII-6LD2VR?OpenDocument> .
19 See, Report of the Special Rapporteur on Violence against Women, Integration of the Human Rights of Women and the Gender Perspective Violence Against Women (para. 224 E/CN.4/2003/75/
Add.1, 27 Feb. 2003). See also, Committee on the Elimination of Discrimination Against Women, Pre-Session Working Group, List of Issues and Questions with Regard to the Consideration of Reports, UN Doc. CEDAW/C/ERI/Q/1-3, 29 July 2005.
In its response, the State alleged that it lacked the ability to produce detailed data on this topic. Nevertheless, the US Department of State Country Report on Human Rights Practices in Eritrea (2006) confi rms a state of pervasiveness of violence against women, including: spousal abuse, female genital mutilation, prostitution, unequal access to educa- tion, employment, and control of economic resources. In particular, it states that ‘ there were reports that some women drafted into the national service were subjected to sexual harassment and abuse ’ . 20
CEDAW Committee Expert Mary Shani Dairiam asked directly about the incidence of violence against women in the service. 21 The reply ignored the query on violence in the military, and this received no follow up by the Committee. The government only referred generally to the right of women experiencing sexual harassment to complain to the National Union, and the provision of training for victims of rape, as rape of women of all ages ‘ had been widely used ’ during the war. Hence, there was no discussion about rape within the military per se . The discussion addressed rape as a general issue within the society as a whole, and failed to address how to approach institutionalized violence against women. CEDAW’s concluding comments urged the State to enact legislation on all forms of sexual abuse, to ensure redress and protection for victims of violence and prosecution and punishment for perpetrators. 22 It also called for training of the judici- ary, law enforcement personnel, and health service providers to respond to violence against women. The State’s refusal to reply to the specifi c query on the issue of sexual violence within the military suggests that the State is unable or unwilling to document the extent to which it responds to viola- tions. If one were to apply this to the asylum determination process, the failure of the State to provide substantive evidence of its fulfi lment of duties to protect its women conscripts from exposure to sexual abuse indi- cates grounds for fi nding in favour of protection claims.
3. Rape within the military as grounds for asylum
The 1951 Convention on the Status of Refugees, Article 1, defi nes a refugee as ‘ owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of nationality and is unable, or owing to such fear, unwilling to avail himself of the protection of that country . . . ’ . As noted by the Special Rapporteur on Violence against
20 US Department of State, ‘ Country Report on Human Rights Practices in Eritrea (2006) ’ , Bureau of Democracy, Human Rights and Labour, 6 Mar. 2007.
21 Above n.18.
22 UN Committee on the Elimination of Discrimination Against Women, Concluding Comments:
Eritrea, UN doc. CEDAW/C/ERI/CO/3, 3 Feb. 2006, available at: < http://www.un.org/womenwatch/
daw/cedaw/34sess.htm> .
Women, its Causes and Consequences, Radhika Coomaraswamy, rape can constitute grounds for asylum:
The Offi ce of the High Commissioner (UNHCR) encourages countries to con- sider that rape or other forms of sexual violence, when committed as measures of oppression against a person’s race, religion, nationality, membership of a par- ticular social group or political opinion, and particularly when such actions are condoned by the authorities concerned, should be grounds for asylum. Rape and sexual violence may be considered grounds for persecution within the defi nition of the term ‘ refugee ’ in the statute of the Offi ce (para. 6 A (ii) and the 1951 Convention (art. 1 A (2)) if the acts are perpetrated or ‘ knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection ’ . 23
The following sections will examine each part of the refugee defi nition in relation to rape and the penalty for desertion from the military.
3.1 Rape and sexual violence as persecution
In 2002, UNHCR issued guidelines on Gender-Related Persecution. 24 The guidelines set forth that rape is an act which infl icts severe pain and suffering (mental and physical); and which is used as a form of persecution by State and non-State actors. 25 In terms of defi ning rape as an act of serious harm amounting to persecution, one is to consider the violation of one’s autonomy and dignity, privacy, security and integrity of the person. 26 In addition, rape can constitute cruel, inhuman or degrading treatment, as well as torture. 27 Essentially, control of one’s body is at the core of one’s
23 UNHCR, ‘ Handbook on Procedures and Criteria for Determining Refugee Status ’ (Geneva, 1992), para. 65, cited by Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Ms Radhika Coomaraswamy, ‘ Violence against women perpetrated and/or con- doned by the State during times of armed confl ict (1997-2000) ’ , UN doc. E/CN.4/2001/73 , 23 Jan.
2001, para. 171.
24 UNHCR, ‘ Guidelines on Gender-Related Persecution within the Context of Article 1 A (2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees ’ : HCR/GIP/02/017, May 2002.
25 Ibid., para. 9.
26 Askin confi rms that sexual attacks directed against persons on the basis of their gender or sex would constitute discriminatory persecution. Kelly Askin, The Jurisprudence of International War Crimes Tribunals, n. 4 above, 143. The ICTY held in the Kvocka and Krstic judgments that rape and sexual violence is persecution when committed with a persecutory intent against a protected group.
The Kvocka Trial Chamber found that intentionally directing attacks exclusively against non-Serbs constitutes discrimination within the meaning of persecution. Prosecutor v. Kvocka et al , ICTY Case No.
IT-98-30/1, Trial Chamber Judgment (2 Nov. 2001). See also, Prosecutor v. Krstic , ICTY Case No. IT- 98-33, Trial Chamber Judgment (2 Aug. 2001).
27 See, Article 7 of the International Covenant on Civil and Political Rights: ‘ No one shall be sub- jected to torture or to cruel, inhuman or degrading treatment or punishment. ’ International Covenant on Civil and Political Rights, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16), 52, UN Doc.
A/6316 (1966), 999 UNTS 171, entered into force 23 Mar. 1976. See also, the Convention Against Torture, Article 1: ‘ Any act by which severe pain or suffering, whether physical or mental, is intention- ally infl icted on a person for such purposes as obtaining from him or a third person information or a
sense of dignity and autonomy. Furthermore, one must consider the phys- ical and psychological consequences of rape, including post-traumatic stress, unwanted pregnancy and abortion, exposure to sexually transmitted diseases or fear of rejection by one’s family or community.
Eritrea’s report to CEDAW states that rape is penalized under the law, and this includes rape via intimidation (prevalent within the context of rape in the military) not only violence: ‘ Whoever compels a woman to submit to sex- ual intercourse outside wedlock, whether by the use of violence or grave intimidation or after having rendered her unconscious or incapable of resist- ance is punishable by law. ’ 28 Nevertheless, it is noted that not all rapes are reported, because the victim or her family fear social alienation. An important detail is that unlike many other countries, in which there is no information as
confession, punishing him for an act he or a third person has committed or is suspected of having com- mitted, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is infl icted by or at the instigation of or with the consent or acquiescence of a public offi cial or other person acting in an offi cial capacity. ’ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 UN GAOR Supp. (No. 51), 197, UN Doc. A/39/51 (1984), entered into force 26 June 1987. See, Prosecutor v. Kunarac , ICTY Case Nos. IT-96-23-T & IT-96-23/I-T, Trial Chamber I and Appeals Judg- ments (22 Feb. 2001 and 12 June 2002) holding rape as a violation of Article 3, an outrage upon per- sonal dignity and customary international law. The ICTY highlighted gender discrimination as the purpose of the rape in the Celebici case, thereby elevating it to an act of torture: ‘ The violence suffered by Ms Cecez in the form of rape, was infl icted upon her by Delic because she is a woman … and this represents a form of discrimination which constitutes a prohibited purpose for the offence of torture. ’ Prosecutor v. Delalic et al (Celebici) Case No. IT-96-21, Trial Chamber II Judgment (16 Nov. 1998).
28 The recognition of rape or sexual violence via intimidation or coercion is present at the interna- tional level. The ICTR Trial Chamber judgment in Akayesu offered the fi rst defi nition of rape in international law: ‘ a physical invasion of a sexual nature, committed on a person under circumstances which are coercive ’ . Prosecutor v. Akayasu , Case No. ICTR-96-4-T, Judgment (2 Sept. 1998), 598. Sexual violence was defi ned as ‘ any act of a sexual nature which is committed on a person in circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact ’ . It noted that coercion need not be physical force, but rather may be expressed via threats, intimidation, duress or extortion which ‘ prey on fear or desperation ’ . It is interesting to note that the ICTR remarks that coercion may be inherent in armed confl icts or when the military or militias are present. Indeed, for a female soldier her environ- ment is the military which may be characterized by the framework of coercive norms linked to com- mand and control systems. The ICTY in the Furundzija case, No. IT-95-17/1, Trial Chamber Judgment (10 Dec. 1998) offers another defi nition of rape: ‘ sexual penetration, however slight of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; by coercion or force against the victim or a third person ’ . With respect to sexual violence, the ICTY in the Kunarac case set up a three part defi nition: I) sexual activity is accompanied by force or threat to the victim or third party, ii) the sexual activity is accompanied by force or a variety of other specifi ed cir- cumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal; or iii) the sexual activity occurs without the consent of the victim. Prosecutor v. Kunarac , ICTY Case Nos. IT-96-23 and IT-96-23/I-A, Trial Chamber Judgment (22 Feb. 2001). ICTY in Furundzija Case No. IT-95-17/1 (10 Dec. 1998), 186, defi nes sexual assault as embracing ‘ all serious abuses of a sexual nature infl icted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is degrading and humiliating for the victim’s dignity ’ . Further, the ICC Elements of Crimes 7(1)(g)-6 and 7 (1)(g)-1on sexual violence and rape as crimes against human- ity cites coercion, psychological oppression, abuse of power, a coercive environment, and that the person is incapable of consent.
to the incidence of rape, Eritrea actually has offi cial statistics from the Attor- ney General which indicate a 46 per cent increase in rape cases:
It has been stated that the prevalence of sexual violence in post-confl ict situations may be viewed as a phenomenon which seeks to return women to domestic roles previously held. 29 Sexual violence is refl ective of struc- tural and social inequalities in power and serves as a means by which to maintain such imbalance. 30 Attitudes regarding non-recognition of rape as a crime, the duty of submission of women when receiving a marriage proposal from a man, forced circumcision, and limited access to educa- tion seek to counteract the advances women made during their participa- tion in the liberation struggle. An arena in which it appears that Eritrean women have a high risk of being subjected to sexual violence on account of its inherent coercive context is that of the Army.
3.2 Compulsory military service and sexual violence in Eritrea The increase in the incidence of rape within the general society may sug- gest that a similar increase may be present within the military. Specifi cally, there remains a need to consider the circumstances in which rape occurs internally within a military system. All Eritrean citizens above the age of 18 have a duty to serve in the national service and forced recruitment of adults and minors is so widespread that the country has been described as ‘ completely militarised ’ . 31 All high school students are sent to fi nish their fi nal year within a school in the military training camp in Sawa. 32 None of them have entered the University of Asmara, which now only has upper level students who enrolled prior to the enactment of the draft. 33 Offi cially, it is estimated that, at present, women comprise 3.09 per cent in the ground-force; 3.30 per cent in the navy; 8.92 per cent in the air
29 Marie Vlachova & Lea Biason, Women in an Insecure World (Geneva Centre for the Democratic Control of Armed Forces 2005), 119.
30 Jacqueline R. Castel, ‘ Rape, Sexual Assault and the Meaning of Persecution ’ 4 IJRL 39, 48 (1992), citing Bert Van Herk, Why Men Rape (Meppel: Boom 1985), 140.
31 The National Service Act No.82/95 (1995). See, Bill Weinberg, ‘ Conscientious Objection in Eritrea ’ , The Broken Rifl e, Dec. 2005, available at: < http://www.ww4report.com/node/1363> .
32 Ibid.
33 Ibid.
Year 1998 1999 2000 2001 2002
Reported Rape cases 21 49 49 63 72 **
** The fourth quarter report not included, the fi gure will tend to increase.
force; 10.36 per cent administration/support staff within the Ministry and over 400 women offi cers operational in the Military. 34 Women soldiers are subject to a social system within the society at large which is characterized by a hierarchical order founded on the principles of command and con- trol. To the extent that democratic principles are not respected in the ex- ternal society, they are less likely to be respected in the internal military system. Amnesty International issued a report which set forth:
There have been allegations from former conscripts of a pattern of sexual violence against female conscripts. Female conscripts are reported to have been subjected to sexual abuse, including rape. Amnesty International has received reports that some of the new female recruits were selected by commanders for sex under duress, through being threatened with heavy military duties or being sent to the battle- front during the war or to a remote and harsh posting, or being denied home leave.
In some cases, this may be termed rape or possible sexual slavery because, although it may not have consisted of physical violence, it was coercive within a command and discipline system where women had little or no opportunity to resist. There was no mechanism for complaining to the military or civilian authorities, and when complaints were made no action was known to have been taken to stop and prevent this practice, which appears to have been widely known. In some cases, the women became pregnant and were sent home to their families. They were then subject to extreme social dishonour in the community as unmarried mothers. 35 The Eritrean female asylum seekers in Norway attested to the rape of other women besides themselves, signalling the possibility of a systematic practice. They claimed abuses including detention (short and long term), beatings, forced abortions (and attempted abortions), forced heavy labour, forced ingestion of drugs, death threats, degrading treatment, continuous sexual violence and rape, as well as possible forced pregnancy and sexual enslavement. 36 They also alleged that some women suffered sexual abuse by military leaders beyond the one they served directly. Refusal to submit
34 It is important that the labour proclamation of Eritrea No.118/2001, which guarantees non- discrimination for treatment in employment of women, does not apply to the military. Article 65 of the proclamation - on general protection measures - reads:-
1. Women may not be discriminated against as regards opportunity or treatment in employment and remuneration, on the basis of their sex.
35 Amnesty International, ‘ You Have No Right to Ask - Government resists scrutiny on human rights ’ , 19 May 2004.
36 With respect to forced pregnancy, Kelly Askin states:
If a woman was raped with the intent to discriminate against her, to persecute her, to torture her or to commit any other grave violation of international law, and she became pregnant as a result of the rape, the pregnancy could probably be prosecuted successfully as forced pregnancy. The victimizer merely needs to intend to engage in the conduct, the sexual activity, not intend the preg- nancy. Further, one of the natural and foreseeble consequences of sex is pregnancy. Pregnancy is clearly a foreseeble result of sex and hence rape.
Kelly Askin, ‘The Jurisprudence of International War Crimes Tribunals: Securing Justice for Some Survivors’, n. 4 above, 141.
to sexual abuse was punished by detention, torture, humiliation and ill- treatment: including underground detention, binding of hands and feet and placement in stress positions, suspension from trees, limitation of food rations, exposure to extreme heat and insects, shaving of the head, etc. Furthermore, similar to the ICTY Kunarac case, they described being forced to perform domestic duties, including washing clothes, cooking, and preparing coffee, in addition to continuous sexual violation, thereby signalling a possible case of enslavement. 37 Given the exclusive nature of the sexual slavery (pseudo-familial form), it may be more properly char- acterized as forced marriage. 38 Some applicants feared forced marriage to third persons as a result of the rapes (in order to obscure the stigma of rape), forced marriage to the very commanders who abused them, or the inability to marry at all due to the trauma and stigma of being a victim of sexual violence. Applicants alleged that other women selected suicide as a mode of escape from the sexual violence.
3.3 The measure of sexual violence as continuous persecution The Eritrean women asylum seekers voiced concern for the loss of con- trol of their own well being and autonomy after experiencing sexual
37 See, Prosecutor v. Kunarac , Case Nos. IT-96-23-T and IT-96-23/1-T (22 Feb. 2001), noting that in spite of the fact that the women were not locked in the house, they were held captive as they were sur- rounded by soldiers and could not escape. The subjugation of the women by forcing them to perform domestic work in addition to enduring sexual violence was considered indicative of treatment as if they were property of the captors, thereby constituting enslavement. Control over the women’s sexuality was achieved via their deprivation of liberty. The Appeals Chamber discussed the concept of power or ownership based on elimination of the free will of the victim via ‘ threat or use of force or other forms of coercion, the fear of violence, deception or false promises, abuse of power, the victim’s position of vulnerability, detention or captivity, psychological oppression, and socio-economic conditions ’ . The abusers exerted ownership over their victims by humiliating them, forcing them to perform domestic labour, and forcing them to serve the same people that abused them. According to Oosterveld, the ICTY recognized the fundamental right to sexual self-determination addressing sexual enslavement (although only referring to enslavement as such) as a crime against humanity in Kunarac , Kovac , and Vukovic , ICTY Case. Nos. IT-96-23-T, IT-96-23/1-7, P/20, ICTY Appeals Chamber (12 June 2002).
Valerie Oosterveld, ‘ Sexual Slavery and the International Criminal Court: Advancing International Law ’ , n. 3 above, 651. It has been argued that the prohibition of sexual slavery is considered to refl ect customary law, indeed may be considered jus cogens if one considers the ICC Rules of Procedure and Evidence Rule 70 which notes that one cannot raise consent as a defence to slavery, as it is jus cogens . See, Rina Lehr-Lehnart, ‘ One Small Step for Women: Female-Friendly Provisions in the Rome Statute of the International Criminal Court ’ 16 BYU J. Pub. L 317 (2002). See, Supplemental Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 7 Sept.
1956, 266 UNTS 3, entered into force Apr. 1957. Sexual slavery is defi ned in the Rome Statute and Elements of Crimes as being both a crime against humanity 7 (1)(g)-2 and a war crime 8 (2)(b)(xxii)-2.
The core common elements are:
The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or battering such a person or persons, or by imposing on them a similar deprivation of liberty.
The perpetrator caused such person to engage in one or more acts of a sexual nature.
38 Kelly Askin, ‘ The Jurisprudence of International War Crimes Tribunals ’ , n. 4 above, 149.
39 Case UDI 005 (unpublished case on fi le with the author).
violence. One applicant stated that she felt that the battalion leader de- stroyed many things for her and that it would be diffi cult for her to have a normal relationship with a man after having endured these experiences.
Another case evoking such images actually did result in asylum. The claimant was of Christian faith with health problems (hearing diffi culties, head, neck and back pains) who claimed that she was punished while serving in the military for reading the Bible. 39 She claimed to have had cold water thrown on her and to have been forced to roll around the ground for an hour over a period of three days. She also claimed that her superior told her that if she slept with him, he would not punish her for causing problems on account of her faith. When she refused, he held a gun to her head and raped her. She stated that she was a virgin and that he destroyed her life, thereby linking her bleak future prospects to the past rape. The provision of asylum stands in contrast to the other cases which were given a lower level of protection. 40 The Norwegian Immigration Directorate’s analysis in the other cases was bifurcated, as discussion of past persecution in the form of sexual violence was consid- ered separately from its consequences which extended into the present.
There is a need to adopt an evaluation framework which would identify a protection continuum addressing past, present and future aspects of subjugation to sexual persecution.
One may consider the example of the Inter American Court of Human Right’s recognition of a violation of one’s ‘ life plan ’ as regards a victim of rape and torture. The case of Loayza Tamayo involved a female university professor who was detained, raped, and tortured by state agents. Her life was radically changed after the abuse: she gave up her studies, moved abroad, suffered deep depression and chronic post-traumatic stress disor- der. Her ability to fulfi l her ambitions was devastated and her options in life were severely limited. From a transcendental perspective, her personal aspirations were destroyed and in this manner her very sense of self was permanently altered. 41 The Court determined that these actions had long term effects in that they inhibited the fulfi lment of the woman’s potential and goals (personal and professional), which could be considered an impor- tant manifestation of freedom. The Court held the State responsible for
40 The other eleven cases involving Eritrean female asylum seekers received humanitarian protec- tion on compassionate grounds.
41 The Joint Concurring Opinion of Judges A.A. Cancado Trindade and A. Abreu-Burelli set forth:
‘ The project of life encompasses fully the ideal of the American Declaration of 1948 of proclaiming the spiritual development as the supreme end and the highest expression of human existence. The damage to the project of life threatens, ultimately, the very meaning which each human person attributes to her existence. When this occurs, damage is caused to what is most intimate in the human being: this is a damage endowed with an autonomy of its own, which affects the spiritual meaning of life. ’ Concurring Opinion, Loyaza Tamayo Reparations, I/A Court H. R. Series C No. 42 (1998), para. 16.
failing to prevent the violations, and in that manner highlighted a breach of the social contract of which the natural consequence is the ‘ self-imposed ’ exile of the victim:
In the case under study, while the outcome was neither certain nor inevitable, it was a plausible situation - not merely possible - within the likelihood given the subject’s natural and foreseeable development, a development that was disrupted and upset by events that violated her human rights. Those events radically alter the course in which life was on, introduce new and hostile circumstances, and upset the kind of plans and projects that a person makes based on the everyday circumstances in which one’s life unfolds and on one’s own aptitudes to carry out those plans with a likelihood of success … Thus, a person’s life is altered by factors that, although extraneous to him, are unfairly and arbitrarily thrust upon him, in violation of laws in effect and in a breach of trust that the person had in govern- ment organs duty-bound to protect him and to provide him with the security needed to exercise his rights and satisfy his legitimate interests … It is obvious that the violations committed against the victim in the instant Case prevented her from achieving her goals for personal and professional growth, goals that would have been feasible under normal circumstances. Those violations caused irreparable damage to her life, forcing her to interrupt her studies and to take up life in a for- eign country far from the context in which her life had been evolving, in a state of solitude, poverty, and severe physical and psychological distress. 42
Similarly, the International Criminal Tribunal for Rwanda (ICTR) noted in the Akayesu case that ‘ Rape destroys the spirit and the will to live, caus- ing pain beyond the act of rape itself ’ . 43 Indeed, this brings to mind the oft-cited remark by persecutors that they chose to rape their victims rather than kill them, knowing that the former act rendered consequences more devastating than death. Consequences of rape may negate the pos- sibility of returning to one’s home with any sense of dignity or security:
fear of rejection, mistreatment, social stigma, or ostracization by one’s family or community, the inability to fi nd a husband or have children, severe health problems and diseases, psychological disorders, including persistent fear and anxiety affecting intimacy, depression, nightmares, feelings of loss of control of one’s life, and ongoing threat to life or safety due to potential reprisal by the persecutor due to escape, revelation of her experience, or fear that she will be a potential witness against him in a future prosecution. This underscores the notion that a protection assess- ment of sexual violence requires fl uidity in order to fully examine the
42 Loayza Tamayo , Reparations, I/A Court H. R. Series C No. 42 (1998), paras. 147-153.
43 Prosecutor v. Akayesu , ICTR 96-4-T, Judgment 732 (2 Sept. 1998). The Tribunal also held that ‘ the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts ’ , 597. See also, Elisabeth Odio-Benito, ‘ Sexual Violence as a War Crime ’ in Pablo Antonio Fernandez-Sanchez, The New Challenges of Humanitarian Law in Armed Confl icts , 163-173 at 166 (Martinus Nijhoff 2005), noting ‘ In the case of women, besides the assault itself, she will suffer guilt, punishment and marginalisation, as if she were responsible for the crime. ’
scope of related serious harm that often extends beyond distinct time periods or geographic locations. 44
Several of the Eritrean women asylum seekers indicated aspirations for continued education, the possibility of marriage and children out of free choice, as well as participation in the labour market in order to provide for older parents and younger siblings. These concerns appeared to work against them, as the immigration authorities seemed to discredit their pro- tection needs given their identifi cation of socio-economic goals linked towards provision of support to loved ones. In addition, the Eritrean wom- en’s concern for their family is indicative of an ‘ ethic of care ’ characteristic of their gender, which unfortunately appeared to also be interpreted by the Immigration Authorities to be factors weakening the veracity of a persecu- tion claim. 45
3.4 Adequate and effective protection by the State
Asylum is a surrogate protection granted in response to the State of origin’s inability or unwillingness to provide protection to persons facing persecution. Cases involving sexual violence within the military often contain testimonies which characterize the failure of the State to pro- vide protection as a second violation of equal impact. For the refugee status determination, evaluation of the State’s implementation of a pre- vention and response framework is the central aspect of the protection analysis.
3.4.1 Enforcement of the Penal Code
The Eritrean Penal Code does contain a provision addressing use of vio- lence or degrading treatment by a superior against an inferior, and one may argue that it may apply in the situation of sexual violence:
1. Whosoever threatens a person subject to his orders or of lower rank, strikes him, uses cruelty or violence towards him, or treats him in a degrading man- ner, is punishable with simple imprisonment not exceeding six months.
2. Where the offender has made use of a weapon or other dangerous instru- ment, he is punishable with simple imprisonment not exceeding fi ve years. 46
44 In cases citing past rape, this may support an argument that she has compelling reasons arising under past persecution to refuse to avail herself of the country of nationality under Article 1 C 5 of the 1951 Convention on the Status of Refugees in spite of a change of circumstances in the country of origin. Hannah Pearce, ‘ An Examination of the International Understanding of Political Rape and the Signifi cance of Labelling it Torture ’ 14 IJRL 534 (2002). See also, Evelyn Mary Aswad, Note:
‘ Torture by Means of Rape ’ 84 Geo. L. J . 1913 (May 1996). Cf. David Milner, ‘ Exemption from Cessa- tion of Refugee Status in the Second Sentence of Article 1C(5)/(6) of the 1951 Convention ’ 16 IJRL 91 (2004).
45 On the ethic of care, see Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Develop- ment (Cambridge: Harvard University Press, 1982).
46 Article 305 of the Penal Code.
Similarly, it sets sanctions against threats, attack, or striking of a member of the armed forces in the execution of his duties. 47 The problem is ob- viously linked to enforcement possibilities. As abuses committed within the military are processed internally, and the assailants have high stature, the victims feel there is no avenue for remedy. Bisrat Habte Micael pro- vided the following testimony: ‘ In May 1999, the unit commander tried to rape me. I screamed and others came to help me and prevented it from happening. I demanded that he be punished, but it was his respon- sibility to pass on my complaint to his superiors. He did not get pun- ished. ’ 48 Other reports cite thousands of cases of women resorting to draft evasion or exile as a result of their fear of the consequences of military service and lack of response by the State:
Only a handful of young girls were able to fi le a lawsuit against their army com- manders. But, despite many victims coming forth with mounting evidences and witnesses, even actually naming the culprits, most of the cases do not pass beyond the perpetrators themselves. What is even more frustrating is the cum- bersome legal procedures the victims have to go through. Usually, the very rap- ists themselves are the perpetrators of the crime, the judges and the prosecutors.
The criminals have occupied the position of the protector and the guard … The same indifference shown to them by their army commanders is shared by the central PFDJ government offi cials. The president himself, when asked, sarcasti- cally scorning the situation replied with this outrageous comment to the public:
‘ I have sent 1000 girls but they came back 2000 ’ , implying that they came back with unplanned pregnancies and babies, deliberately overlooking the magnitude of the atrocities that women in the military services suffer by his army com- manders … one offi cial (stated) that PFDJ was too busy with ‘ other obligations ’ , as if there were something more pressing than the torture and rape of women and girls. 49
The asylum applicants stated that there did not appear to be any op- portunity for recourse as higher authorities directly refused or ignored their pleas for response. One applicant noted: ‘ They didn’t help the women … They use force against women to pursue sexual attacks. It didn’t help if women screamed. No one dared to help because they were scared. ’
47 Article 333, simple imprisonment of one month to three years, unless serious bodily harm or death is a consequence.
48 Bill Weinberg, ‘ Conscientious objection in Eritrea ’ , The Broken Rifl e , Dec. 2004, interview from 28 May 2004.
49 ‘ Rape and torture and cover-up of innocent girls in Sawa ’ , Asmarino News , 4 Jan. 2004, available at: < http://news.asmarino.com> . See also, Eritrean Anti-Militarism Initiative, confi rming sexual mis- treatment and harassment of women by military offi cials, available at < http://www.forefrontleaders.
org> .
